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Are laws designed to protect individuals and minority groups from offence and harassment inhibiting free speech?

A discussion recently on BBC Radio 4’s Unreliable evidence addressed this question with some high powered contributors.

An activist for disability rights, Bethan Tichborne, was convicted of ‘using threatening words or behaviour to cause harassment, alarm or distress’ in March 2013 for telling David Cameron he had “blood on his hands”.

As the Guardian reported, District Judge Tim Pattinson told her: “It is difficult to think of a clearer example of disorderly behaviour than to climb or attempt to climb a barrier at a highly security-sensitive public occasion.”

‘Judge Pattinson praised Tichborne’s previous good character but said her comments that Cameron “had blood on his hands” could “hardly be more insulting to anyone, whether a politician or not”.’

Then again: ‘In May 2005, Sam Brown, an Oxford student out celebrating the end of his finals, decided to address a mounted police officer. “Do you realise your horse is gay?” he asked… Two squad cars arrived, disgorging a group of officers who promptly arrested Brown under Section 5 of the Public Order Act, for making homophobic remarks.’ [Guardian]

Allowing for the likelihood that some instances of arrest and even prosecution are politically motivated, it’s clear that there is something wrong in the legislation. Part of this is down to the endemic confusion between the purpose of an activity and the outcomes it seeks to achieve.

But let’s get some things straight.

1 No-one can make us feel anything

When we take offence at a remark, that is what we are literally doing: taking offence. The offence that we feel is entirely created by us in our own minds. To argue anything else is preposterous.

If I am literally incapable of thinking in any way except that determined by another person and achieved by them uttering some words which they were certain would have precisely this effect on me, then I have literally lost control of my mind. And how come one remark would have this effect, but other remarks made by other people wouldn’t rob me of my control of my mind? What mechanism is in play there? How is it switched on by the other person?

In what way might someone else literally get inside my skull and brain to tweak the neurons so that my thoughts predictably changed to ones desired by the other person?

People who believe that this is happening to them usually received advanced psychiatric treatment and, in the most serious cases, are sectioned under the mental health act. Even then, this is only a belief, it isn’t really true.

Of course, it is possible to create a context—by conversation or demonstration—in which someone is more likely to do or think something. After all, that’s the premise on which coaches, mentors and trainers work.

But, at end, the choice to think or do is made by the other person. As Viktor Frankl observed, ‘everything can be taken from a man but one thing: the last of the human freedoms—to choose one’s attitude in any given set of circumstances, to choose one’s own way’.

2 Hate is a thought

It’s one thing to incite people to do something damaging or destructive. Surely, it’s another thing to incite someone to believe or feel something. If someone attempts to convince me that people with striped hair are evil, should they be prosecuted for making that attempt? If so, we are truly in the era of the thought police where simply holding specific beliefs is an offence. Apart from the moral objections, there are technical and resource issues which obviously make it impossible to enforce this.

It’s far closer to home than you might think. In May 2010, ‘Dale McAlpine [a street preacher] was charged with causing “harassment, alarm or distress” after a homosexual police community support officer overheard him reciting a number of “sins” referred to in the Bible, including blasphemy, drunkenness and same sex relationships’, according to the Telegraph. Given that the Bible is the text of the Church of England, the religious body officially endorsed by the state, the preacher was ‘simply’ expounding views endorsed (at a deep level) by the state. It’s a ridiculous paradox.

3 No rights without responsibility

One of the most depressing aspects of this debate is the number of people who promote a right to freedom of speech without acknowledging the other position, and the number promoting a right to protection without acknowledging free speech. The most useful position to adopt is one which embraces both simultaneously.

As the American jurist, Oliver Wendell Holmes Jr, said in 1919, “The most stringent protection of free speech would not protect a man in falsely shouting fire in a theatre and causing a panic”. Or, to put it more generally: No rights without responsibility.

Of course, I believe the final four words of Wendell Holmes’s quotation are redundant: shouting fire doesn’t cause the panic—it contributes to a context in which panic is more likely to arise. The principle is that the person shouting fire shares the responsibility along with the people panicking.

The street preacher, above, shares the responsibility for any offence caused in the homosexual police officer but, had the officer decided to act on Frankl’s observation, he wouldn’t have been offended in the first place, so any shared responsibility would vanish. In a very real sense, the police officer chose to be offended. This makes one argue that the preacher’s responsibility is very much a secondary one; he doesn’t have any control over the police officer’s response, only the officer himself has that.

In the “blood on his hands” case, it is difficult to see how the test of causing “harassment, alarm or distress” has been met. In the context (do read the article for more information), it’s likely that the only person within earshot who might have reacted other than positively to the remark was the arresting officer.

Conclusion

At bottom, the situation is

– no one can make us do or feel anything

– we have a contributory responsibility for what others feel or do, but it’s secondary to that of the other person who always has the ability (unless psychotically ill) to choose how they respond

– however substantial the responsibility someone might have, it is as dangerous as it is stupid to try to regulate what they think or their attempts to persuade other people to think in certain ways.